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Divorce versus Marital Rape: A Tale of Hypocrisy

As per recent reports[1], the central government of India (the government) has, in response to a petition filed before the Supreme Court, defended the statutory exception permitting child marital rape. The validity of the controversial exception to Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”[2], has been challenged by the NGO Independent Thought.

The government has rightly been taken to task for its shocking stance towards child marital rape. In a brazen display of apathy, it pinned the blame for the social evil on “socio-economic realities”[3] implicitly washing its hands of the problem. In blithely condoning the heinous traditions that sanction the victimization of children, the government made its intentions clear: it was not interested in redressing the problem.

This antediluvian stand by the government is in stark contrast to the affidavit[4] it submitted last year in the case of Shayara Bano v. Union of India. There, it vigorously endorsed the demand for a constitutional abrogation of discriminatory divorce laws affecting Muslim women. The government went all out in this endeavor, proclaiming that “gender equality and the dignity of women are non-negotiable, overarching constitutional values and can brook no compromise”[5]. In this way, it positioned itself as the primary guardian of Muslim women’s rights.

Importantly, most of the affidavit is devoted to detailing the vast network of international covenants and agreements mandating the institution of gender just measures to alleviate the suffering of women. The government takes pains to remind the Court of its past pronouncements on India’s obligation to adhere to international law commitments on gender justice. Sharply expressing its indignation at the suffering of Muslim women due to the practice of triple talaq (instantaneous divorce), the government exhorts the Supreme Court to once again act on the basis of “international covenants to which [India] is a party”[6].

In embracing change for divorced Muslim women while upholding continuity for child brides, the government does not display a consistent attitude towards women’s rights. Indeed, the international obligations cited to uphold gender justice for Muslim women are all but forgotten when it comes to dealing with child marriage, a social evil practiced mostly by Hindus[7]. In such situations, the government prefers to “protect the institution of marriage”[8] rather than invoke India’s international obligations. Despite the severity of the concerns raised by Independent Thought, the government’s response was timid and meek, devoid of the alacrity with which it condemned gender injustice afflicting Muslim women.

Sadly, such behavior is reflective of past conduct of the government. Prime Minister Modi waxes eloquent about the plight of Muslim victims of divorce but has nothing to say about the many more non-Muslim women abandoned by their husbands[9]. Criticizing this employment of a double standard is not to deny the suffering of many Muslim women. However, the selective memory on display when it comes to international covenants suggests that the government’s interest in women’s rights is piqued when the women in question happen to be Muslim, that too on limited occasions[10]. The government’s aspiration to achieve the goals of gender justice as set out in a raft of international accords is laudable but it is an aspiration that should be pursued in the interests of all women.

* Sachin Dhawan is an Assistant Professor at Jindal Global Law School, India.

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